Citation Nr: 0935297
Decision Date: 09/21/09 Archive Date: 10/02/09
DOCKET NO. 06-13 967 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Baltimore,
Maryland
THE ISSUES
1. Whether new and material evidence has been received to
reopen the claim of service connection for a low back
disability.
2. Whether new and material evidence has been received to
reopen the claim of service connection for left knee
disability.
3. Whether new and material evidence has been received to
reopen the claim of service connection for a right knee
disability.
REPRESENTATION
Veteran represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Veteran
ATTORNEY FOR THE BOARD
Motrya Mac, Associate Counsel
INTRODUCTION
The Veteran, who is the appellant, served on active duty from
March 1984 to February 1987.
This matter is before the Board of Veterans' Appeals (Board)
on appeal of a rating decision, dated in September 2004, of
the Department of Veterans Affairs (VA) Regional Office (RO)
in Jackson, Mississippi.
In July 2009, the Veteran appeared at a hearing before the
undersigned Veterans Law Judge. A transcript of the hearing
is in the record.
Before deciding the claims of service connection for a low
back disability and for left and right knee disabilities on
the merits, the claims are REMANDED to the RO via the Appeals
Management Center in Washington, DC.
FINDINGS OF FACT
1. In a rating decision in February 2004, the RO reopened and
then denied the claim of service connection for a low back
disability to include degenerative joint disease of the
lumbosacral spine on the merits; after the Veteran was
notified of the adverse determination and of his appellate
rights, he did not appeal the denial of the claim and the
rating decision became final.
2. The additional evidence presented since the rating
decision by the RO in February 2004 relates to an
unestablished fact necessary to substantiate the claim and
raises a reasonable possibility of substantiating the claim
of service connection for a low back disability to include
degenerative joint disease of the lumbosacral spine.
3. In a rating decision in February 2004, the RO reopened the
claim and then denied the claim of service connection for a
left knee disability on the merits; after the Veteran was
notified of the adverse determination and of his appellate
rights, he did not appeal the denial of the claim and the
rating decision became final.
4. The additional evidence presented since the rating
decision by the RO in February 2004 relates to an
unestablished fact necessary to substantiate the claim and
raises a reasonable possibility of substantiating the claim
of service connection for a left knee disability.
5. In a rating decision in February 2004, the RO reopened and
then denied the claim of service connection for a right knee
disability on the merits; after the Veteran was notified of
the adverse determination and of his appellate rights, he did
not appeal the denial of the claim and the rating decision
became final.
6. The additional evidence presented since the rating
decision by the RO in February 2004 relates to an
unestablished fact necessary to substantiate the claim and
raises a reasonable possibility of substantiating the claim
of service connection for a right knee disability.
CONCLUSIONS OF LAW
1. The rating decision in February 2004 by the RO, reopening
and denying the claim of service connection for a low back
disability to include degenerative joint disease of the
lumbosacral spine, became final. 38 U.S.C.A. § 7105(c) (West
2002).
2. The additional evidence presented since the rating
decision by the RO in February 2004, reopening and denying
the claim of service connection for a low back disability, is
new and material, and the claim of service connection for a
low back disability to include degenerative joint disease of
the lumbosacral spine is reopened. 38 U.S.C.A. § 5108 (West
2002); 38 C.F.R. § 3.156(a) (2008).
3. The rating decision in February 2004 by the RO, reopening
and denying the claim of service connection for a left knee
disability disability, became final. 38 U.S.C.A. § 7105(c)
(West 2002).
4. The additional evidence presented since the rating
decision by the RO in February 2004, reopening and denying
the claim of service connection for a left knee disability to
include patellofemoral disability, is new and material, and
the claim of service connection for a left knee disability is
reopened. 38 U.S.C.A. §5108 (West 2002); 38 C.F.R. §
3.156(a) (2008).
5. The rating decision in February 2004 by the RO, reopening
and denying the claim of service connection for a right knee
disability, became final. 38 U.S.C.A. § 7105(c) (West 2002).
6. The additional evidence presented since the rating
decision by the RO in February 2004, reopening and denying
the claim of service connection for a right knee disability,
is new and material, and the claim of service connection for
a right knee disability is reopened. 38 U.S.C.A. § 5108
(West 2002); 38 C.F.R. § 3.156(a) (2008).
Veterans Claims Assistance Act of 2000 (VCAA)
The VCAA amended VA's duties to notify and to assist a
claimant in developing information and evidence necessary to
substantiate a claim. 38 U.S.C.A. §§ 5103(a), 5103A; 38
C.F.R. § 3.159.
In light of the favorable disposition, that is, the reopening
of the claims of service connection, the only matter resolved
in this decision, further discussion here of compliance with
the VCAA is not necessary.
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Procedural History
In a rating decision in February 2004, the RO reopened and
then denied the claims of service connection for degenerative
joint disease of the lumbosacral spine and left and right
knee disabilities on the grounds that the disabilities were
not incurred in or aggravated by service.
After the RO notified the Veteran of the adverse
determinations and of his procedural and appellate rights, he
did not appeal the denial of the claims, and the rating
decision became final based on the evidence of record at the
time.
38 U.S.C.A. § 7105; 38 C.F.R. § 3.104.
Although a prior unappealed rating decision of the RO is
final, it may nevertheless be reopened if new and material
evidence is presented. 38 U.S.C.A. § 5108.
Whether a previously denied claim should be reopened is a
jurisdictional matter that must be addressed by the Board
before the Board can consider the underlying claim.
Regardless of how the RO ruled on the question of reopening,
the Board must decide the matter on appeal, because reopening
is a threshold jurisdictional question for the Board.
Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001)
(reopening after a prior unappealed RO denial).
As the Veteran's current application to reopen the claims was
received after August 2001, the current regulatory definition
of new and material evidence applies.
New evidence means existing evidence not previously submitted
to agency decision makers. Material evidence means existing
evidence that, by itself or when considered with previous
evidence of record, relates to an unestablished fact
necessary to substantiate the claim. New and material
evidence can be neither cumulative nor redundant of the
evidence of record at the time of the last prior final denial
of the claim sought to be reopened, and must raise a
reasonable possibility of substantiating the claim. 38
C.F.R. § 3.156(a).
For the purpose of establishing whether new and material
evidence has been submitted, the credibility of the evidence,
although not its weight, is to be presumed. Justus v.
Principi, 3 Vet. App. 510, 513 (1992).
Additional Evidence
The additional evidence presented since the rating decision
in February 2004 consists of a VA medical opinion, dated in
June 2004. The VA physician stated that the Veteran's back
and left and right knee disabilities have been ongoing since
service.
Analysis
As the additional evidence, consisting of a medical opinion,
associates the Veteran's back and left and right knee
disabilities to service, the evidence relates to an
unestablished fact necessary to substantiate the claims, that
is, a nexus between the claimed disabilities and service, the
absence of which was the basis for the previous denials of
the claims, and as the additional evidence raises a
reasonable possibility of substantiating the claims, the
claims are reopened.
ORDER
As new and material evidence has been presented, the claim of
service connection for a low back disability to include
degenerative joint disease of the lumbosacral spine is
reopened. To this extent only the appeal is granted.
As new and material evidence has been presented, the claim of
service connection for a left knee disability is reopened.
To this extent only the appeal is granted.
As new and material evidence has been presented, the claim of
service connection for a right knee disability is reopened.
To this extent only the appeal is granted.
REMAND
In March 2003, the Veteran authorized VA to obtain medical
records of the Hadley Hospital, pertaining to treatment of
his back and knee disabilities, but the records have not been
requested.
In July 2009, the Veteran testified that in 1987 and in 1989
he was treated by VA for his back. Although VA records from
1987 and 1989 are in the record, the records appear
incomplete.
VA will make as many requests as are necessary to obtain
relevant records from a Federal department, unless the
records sought do not exist or that further efforts to obtain
the records would be futile. 38 C.F.R. § 3.159.
Also as the record does not contain sufficient competent
evidence to decide the claims, additional evidentiary
development under the duty to assist, 38 C.F.R. § 3.159(c),
is needed.
Accordingly, the case is REMANDED for the following action:
1. Ensure compliance with Dingess v.
Nicholson, 19 Vet. App. 473 (2006).
2. Obtain records from the Washington,
D.C., VA Medical Center.
3. Request authorization from the Veteran
to obtain the records of Hadley Hospital,
pertaining to treatment for his back and
knees.
4. Afford the Veteran a VA examination to
determine:
a). Whether it is at least as likely as
not that the current low back disability
to include degenerative joint disease and
degenerative disc disease of lumbosacral
spine is related to the injury in service
in January 1985, when the Veteran
complained of low back pain after pushing
a heavy trailer, and the pertinent finding
was muscular low back pain.
The VA examiner is asked to consider these
additional facts:
On separation examination, the
Veteran denied recurrent low back
pain and the evaluation of the spine
was normal. After service, VA
records show that in 1994 the Veteran
was in physical therapy for low back
pain. In October 2000, degenerative
joint disease and degenerative disc
disease of lumbosacral spine by MRI
was documented.
b). Whether it is at least as likely as
not that the current left knee arthritis,
chondromalacia, or patellofemoral pain
syndrome is related to an injury is
service that the Veteran described as
falling on his knees while loading an
aircraft, which is not documented.
c). Whether it is at least as likely as
not that the current right knee
chondromalacia or patellofemoral pain
syndrome is related to an injury is
service that the Veteran described as
falling on his knees while loading an
aircraft, which is not documented, or the
current right knee disability is related
to the Veteran's complaint in-service in
March 1985 of right knee pain without a
history of injury and the knee examination
was normal, which is documented.
In formulating the opinions, the VA
examiner is asked to consider these
additional facts:
On separation examination, the
Veteran denied a "trick" or
"locked" knee and the evaluation of
the lower extremities was normal.
After service, VA records show that
in June 1987, four months after
service, and in July 1989, the
Veteran complained of bilateral knee
pain with onset in service and the
assessment was arthralgia. In April
1995, the Veteran complained of left
knee pain. On VA examination in
January 1996, the assessment was
history of recurrent left knee pain
of questionable etiology, X-rays of
the knee were negative.
In March 1998, the Veteran gave a
one-year history of left knee
clicking and patella pain without
recent injury. History included a
knee injury in service in 1985; X-
rays revealed arthritis of the left
knee. In December 1998, there was an
18 month history of left
patellofemoral pain.
In July 2002, the Veteran complained
of bilateral pain. On VA examination
in January 2004, the diagnoses were
bilateral chondromalacia and
patellofemoral pain syndrome.
The VA examiner is asked to also consider
that the term "at least as likely as not"
does not mean "within the realm of
possibility." Rather, it means that the
weight of the medical evidence both for
and against the conclusion is so evenly
divided that it is medically sound to find
in favor of causation as it is to find
against causation.
The claims folder should be made available
to the examiner for review.
5. After the development has been
completed, adjudicate the claims. If any
benefit sought remains denied, furnish the
Veteran and his representative a
supplemental statement of the case and
return the case to the Board.
The Veteran has the right to submit additional evidence and
argument on the matters the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2009).
______________________________________________
George E. Guido Jr.
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs